Member SAAS / Program Agreement

This  Everything Motorsports (EMS) Software as a Service Agreement is made as of the date the customer registered as a member and between Everything Motorsports, with its principal place of business at 10033 SAWGRASS DR W, STE 123 PONTE VEDRA, FL 32082 (“Provider”), and  Member (“Customer”). Provider and Customer shall individually be referred to as a “party” or collectively, “the parties.”

RECITALS:

WHEREAS, Provider is the provider of EMS, a software as a service platform for buying and selling cars, access to car auctions, and sales information. 

The EMS Platform URL is https://www.everythingmotorsports.com/members

WHEREAS, Customer desires to obtain access and use of the EMS Platform pursuant to the terms and conditions herein; 

NOW, THEREFORE, for and in consideration of the mutual covenants, promises and conditions contained herein, the receipt and adequacy of which are hereby mutually acknowledged, the Parties agree as follows:

AGREEMENT:

1. Definitions. As used herein, the capitalized terms shall have the following meaning:

1.1 “Administrator” means an employee or agent of Customer whom Customer expressly authorizes to exercise administrative privileges on behalf of Customer with respect to the Platform. 

1.2 “Administrative Portal” means the Customer’s web-based administrative portal that enables Customer administrative functions such as account set-up, configuration, account management, managing Software Agents, creating/deleting End Users and Administrators, and other functions.

1.3 “Affiliate” means an entity that is directly or indirectly controlled by or is under common control with a party, where “control” means an ownership, voting or similar interest representing fifty percent or more of the total interests then outstanding of the relevant entity.

1.4 “Agreement” means this EMS Software as a Service Agreement, together with all exhibits, schedules, annexes, and documentation made a part hereof, and all amendments, modifications, supplements, and alterations to it effected in accordance with the terms of this Agreement.

1.5 “Confidential Information” means all non-public information provided by or on behalf of the disclosing party to the receiving party that is unique to the disclosing party’s business, whether or not marked or not marked or identified as such and whether oral or written, including, but not limited to, the following: (a) the terms and conditions of this Agreement; (b) any Platform activation codes; (c) Platform software source or object code; (d) information regarding pricing, product roadmaps and strategic marketing plans; (e) non-public information or materials relating to the Platform; (f) Documentation; and (g) Customer Data. Confidential Information includes, but is not limited to, Provider’s Intellectual Property Rights and all trade secret information. Notwithstanding the preceding, Confidential Information does not include information that: (h) was already known to the receiving party at the time of disclosure by the disclosing party without any confidentiality restrictions; (i) was disclosed to the receiving party by a third party who had the right to make such disclosure without any confidentiality restrictions; (j) is, or through no fault of the receiving party has become generally available to the public; or (k) was independently developed by the receiving party without access to, or use of, the disclosing party’s Confidential Information.

1.6 “Customer” means you, the user of the Platform, and includes your Administrator(s) and End User(s). 

1.7 “Customer Data” means any publicly available information or data regarding an Administrator or End User of the Platform. Customer Data may include, for example, the names, business addresses, business phone numbers, and business email addresses related to any Administrator or End User of the Platform.  Except for the Customer Data described above, the use of the Platform by Customer does not result in the collection, processing, or storing of any personally identifiable information. 

1.8 “Documentation” means all then-current technical documentation, manuals, instructions, online help files, training materials, and any other documents relating to or necessary for the operation, access to, and use of the Platform, including any white-label versions of the same.

1.9 “End User” means any employee or agent of Customer authorized by Customer to access and use the Platform.

1.10 “Intellectual Property Rights” means all intellectual property rights and all tangible embodiments of such rights, wherever located, including but not limited to the following: (a) all trademarks, service marks or other designations of origin, including all registrations and related applications and all goodwill associated with any of the preceding; (b) all copyrights, moral rights, and other rights in works of authorship, including all registrations and related applications; (c) all inventions and ideas, whether patentable or not, and all patent rights, patents and patent applications; (d) all know-how, trade secrets, software code, confidential information, and other proprietary rights and information; and (e) all other rights covering intangible property recognized in any jurisdiction, whether registered or unregistered.

1.11 “Order” means a products or services order which shall be in the form provided by EMS, which shall include the applicable Platform Subscription Fees, Platform Add-On fees, and other relevant conditions. 

1.12 “Platform” means that certain software and services called “EMS” in effect as of the Effective Date of this Agreement, together with all Documentation, and consisting of Software Agents and a web-based dashboard for managing attack simulations, endpoint security posture, results, remediation, and other services on a Target. 

1.13 “Platform Add-On Features” means Platform Professional Services, or any other product or service that requires a fee in addition to the subscription to the Platform described herein, which shall be set forth in an Order. 

1.14 “Platform Professional Services” means additional professional services related to the Platform that Customer requests.  Platform Professional Services may include Platform onboarding services, Blue Team consulting, detection engineering, and other services. All such Platform Professional Services shall require a fee in addition to the Platform Subscription Fees, which shall be set forth in an Order. 

1.15 “Platform Support Services” means support services offered by Provider in connection with the Platform and this Agreement, including, without limitation, any customer support services, technical support, and any other services, functions, or responsibilities required or necessary for the proper performance and provision of the Platform. Platform Support Services are included in the Platform Subscription Fees. 

1.16 “Services” means the Platform Professional Services, the Platform Support Services, and any other services provided by Provider.   

1.17 “Target” means a Customer endpoint environment, which may include for example a computer, server, website, cloud, or application.

2. Use of the Platform; Professional Services; Support Services. 

2.1 Access and Use of Platform. Subject to the terms and conditions of this Agreement, Provider hereby grants to Customer a limited, non-exclusive, non-assignable right to online access and use of the Platform including such features and functions as the Order requires. 

2.2 Restrictions on Use. Customer may not: (a) sell, lease, rent, license, sublicense or otherwise distribute the Platform, or any part thereof, to any third person or entity; (b) use the Platform for any purpose other than expressly permitted by this Agreement; (c) reproduce, copy, modify, transmit, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any Platform source code or object code; (d) sell, assign, sublicense, grant a security interest in or otherwise transfer any rights to the Platform; (e) build a competitive product or service; (f) use the Platform for any illegal purpose, or in violation of any local, state, national, or international law; or (g) authorize any person or third party to do any of the preceding. 

2.4 Platform Support Services. During the term of this Agreement, Provider agrees to provide Customer with Platform Support Services and shall  ensure that the Platform will be accessible and functional on a continuous basis, except for scheduled maintenance periods, in accordance with its Service Level Agreement attached hereto as Schedule A. 

2.5 Documentation. During the term of this Agreement, Customer may access and use the Documentation solely as necessary to support its use of the Platform.

2.6 Platform Update Releases. Provider may elect to make and implement, at no cost or expense to Customer, certain corrections, patches, bug fixes, and other technical improvements relating to the existing features and functionality of the Platform necessary for the Platform to remain in compliance with the terms of this Agreement (each a “Platform Update Release”) provided no such Platform Update Release materially reduces the features or functionality of the Platform.

3. Term and Termination.

3.1 Term. The term of this Agreement (the “Term”) will begin on the Effective Date and will continue month to month unless otherwise indicated in an Order or otherwise terminated pursuant to Section 

3.2 (Termination) herein. The Term will automatically renew for successive periods equal in length to its initial term (each a “Renewal Term”) unless either party provides the other with written notice of intent to terminate at least sixty days before the end of the then-current Term. In the event the Term indicated in an Order is less than one year, the Agreement will terminate at the end of that Term unless extended in writing by Provider.  The Term and any Renewal Term are collectively referred to as the "Term of this Agreement."  

3.2 Termination. Either party may terminate this Agreement, or any Order, for cause effective immediately upon any of the following: (a) in the event of a material breach of this Agreement, or any Order, that is not cured within thirty days of written notice from the non-breaching party specifying in detail the nature of the breach; or (b) if the other party ceases doing business or is the subject of voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within thirty days of filing. Termination of an Order will not terminate this Agreement. Termination of this Agreement will however terminate all outstanding Orders.

3.3 Effects of Termination. Upon termination of this Agreement, Customer will cease all use of the Platform and delete, destroy, or return all copies of any Documentation related to the Platform in its possession or control. Customer will also ensure all End Users cease using the Platform and delete, destroy, or return all copies of any Documentation related to the Platform in their possession or control.   The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay any Platform Subscription Fees or Professional Service Fees; (b) Section 2.2 (Restrictions on Use), Section 5 (Ownership of Platform; Data Management), Section 6 (Confidentiality), Section 7 (Customer Obligations), Section 8 (Representations; Warranty; Limitation of Liability), Section 9 (Indemnification); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose. 

4. Fees; Payment Terms.

4.1 Fees. In consideration for use and access of the Platform, Customer shall pay the Platform Subscription fees (the “Subscription Fees”) and any other fees for Platform Add-On Features as outlined in each Order. Such Subscription Fees and Add-On Features fees shall apply until the start of Customer’s next Renewal Term. Provider reserves the right to change the Subscription Fees and the Add-On Features fees by providing Customer at least thirty days prior written notice (by email) of the change, but any such modification will not apply until the start of Customer’s next Renewal Term. In addition, on the first day of each annual Renewal Term, any volume discounts applicable to Customer for such Renewal Term based on Provider’s then-current fee schedule shall be applied. Except as otherwise specified in an Order executed by the parties: (a) fees are based on the Software Agents acquired and not actual usage; (b) payment obligations are non-cancellable, and fees paid are non-refundable; and (c) the quantity of Software Agents cannot be decreased from the quantity of Software Agents ordered by Customer. 

4.2 Additional Services. If during the Term, or any Renewal Term, Customer chooses to increase the number of users, or order a Platform Add-On Feature (collectively “Additional Services”), Customer shall submit a request to Provider for such Additional Services. Upon receipt of such request for Additional Services, Provider shall provide Customer with a proposed Order, which shall be effective upon written acceptance by Provider and Customer. The Subscription Fees and Add-On Feature fees shall be outlined in the Order.  Such Subscription Fees, Add-On Feature fees, or other fees shall apply until the start of Customer’s next Renewal Term. 

4.3  Invoices, Payment Terms.  Amounts due and payable for the Platform may be invoiced by Provider either: (a) in full at the start of the Term and the at commencement of each new Renewal Term; or (b) as otherwise expressly provided in an Order. Customer agrees to pay the net amount of each invoice without offset or deduction. If any amount is not paid upon the due date set forth in the invoice, Provider shall be entitled to receive the amount due plus interest thereon at the rate of 1.5% per month-18% per annum (or such lower rate as shall be the highest permissible contract rate under applicable law) on all amounts that are not paid on or before the date due. Customer shall also pay all Provider’s reasonable collection costs, including but not limited to reasonable attorneys’ fees and court costs.

4.4 Taxes. Amounts due under this Agreement are payable to Provider without deduction and are net of any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value-added tax, whether or not withheld at the source (collectively, “Sales Tax”). 

4.5 Acceptance. All sales are final, non-refundable, and non-returnable.  Inspection and acceptance of the Platform shall be Customer’s responsibility.

4.6 Suspension, Delay or Cancellation of Services for Nonpayment. Notwithstanding any other provisions of this Agreement and without limiting Provider’s rights or remedies under this Agreement or otherwise, Provider may in its absolute discretion, within ten business days after Customer fails to cure any material breach for nonpayment of fees described in Section 4.1 (Fees) hereof, and only after providing written notice thereof to Customer, suspend the performance of any or all of its obligations under this Agreement or cancel, delay or refuse to provide any services pursuant to this Agreement.

5. Ownership of Platform; Data Management.

5.1 Ownership of Platform. The Platform and Documentation, all copies, portions thereof, improvements, enhancements, modifications, derivative works thereof, and all Intellectual Property Rights therein, are and shall remain the sole and exclusive property of Provider.  Customer’s rights to use the Platform and Documentation shall be limited to those expressly granted in this Agreement and no other rights of Customer concerning the Platform or Documentation or any related Intellectual Property Rights are implied. Subject to the preceding, Customer shall protect Provider’s Intellectual Property Rights as it would its own, but no less than commercially reasonable standards. Customer acknowledges and agrees that the Platform and Documentation are proprietary property of Provider whether or not patented or copyrighted.  This Agreement does not convey to the Customer an interest in or to the Platform and Documentation, but only a limited right of use revocable in accordance with the terms and conditions of this Agreement. 

5.2 Customer Data.  Provider acknowledges that, as between the parties, Customer owns all rights, title, and interest in and to Customer Data. Provider shall not: (a) access, process, or otherwise use Customer Data other than as necessary to facilitate the Customer's use of the Platform, or (b) give Customer Data access to any third party, except Provider’s subcontractors that need such access to facilitate the Platform and are subject to a reasonable written agreement governing the use and security of Customer Data. 

5.3 Required Disclosure. Notwithstanding the provisions above in Section 5.2 (Customer Data), Provider may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Provider shall give Customer prompt notice of any such legal or governmental demand, unless lawfully prohibited by such demand, and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.

5.4 Usage Data. Provider may use information about how Customer uses the Platform in an aggregate, de-identified and generic manner (the “Usage Data”) for Platform performance, usage, marketing, survey, analytics, benchmarking, and other similar purposes provided that it does not identify Customer or any client of Cusstomer. Usage Data will not be considered Customer Confidential Information, and nothing herein shall grant Customer any right, title, or interest in such Usage Data.

5.5 Feedback. Customer may provide Provider with suggestions, comments, or other feedback regarding the Platform (collectively, “Feedback").  Feedback is voluntary and Provider is not obligated to hold it in confidence. Provider may use Feedback for any purpose without obligation of any kind. To the extent a license is required to use the Feedback, Customer grants Provider an irrevocable, non-exclusive, perpetual, royalty-free license to use the Feedback in connection with Provider’s business, including the enhancement of the Platform. Feedback will not be considered Customer’s Confidential Information. 

5.6 Data Security. During the Term of this Agreement, Provider will: (a) maintain a security program that materially complies with all applicable laws and regulations governing data security, and (b)  maintain appropriate physical and technical safeguards compliant with generally accepted industry standards. 

6. Confidentiality.

6.1 Restrictions on Use of Confidential Information. The receiving party may use Confidential Information of the disclosing party solely to: (a) exercise its rights and perform its obligations under this Agreement; or (b) in connection with the parties’ ongoing business relationship. The receiving party will not use any Confidential Information of the disclosing party for any purpose not expressly permitted by the Agreement and will disclose the Confidential Information of the disclosing party only to the employees or contractors of the receiving party who have a need to know such Confidential Information for purposes of the Agreement and who are under a duty of confidentiality no less restrictive than the receiving party’s duty hereunder. The receiving party will protect Confidential Information from unauthorized use, access, or disclosure in the same manner as the receiving party protects its own confidential or proprietary information of a similar nature but with no less than reasonable care. The receiving party shall promptly notify the disclosing party of any misuse or misappropriation of Confidential Information that comes to the receiving party’s attention. Notwithstanding the preceding, the receiving party may disclose Confidential Information to the extent required by applicable law or by a proper legal or governmental authority, provided however, that receiving party shall give the disclosing party prompt notice of any such legal or governmental demand (unless lawfully prohibited by such demand) and reasonably cooperate with disclosing party in any effort to seek a protective order or otherwise to contest, limit, or protect such required disclosure, at the disclosing party’s expense.

6.2 Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license to it. The disclosing party will retain all rights, title, and interest in and to all its Confidential Information.

6.3 Termination and Return. With respect to each item of Confidential Information, the obligations of Section 6.1 (Restrictions on Use of Confidential Information) will survive the termination of this Agreement. Upon termination of this Agreement, each party shall return all copies of the other party’s Confidential Information or certify, in writing, the destruction thereof. 

7. Customer Obligations.

7.1 Acceptable Use.  Customer shall not: (a) use the Platform for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Platform; (b) provide Platform passwords or other log-in information to any third party; (c) share non-public Platform features or content with any third party; or (d) access the Platform in order to build a competitive product or service, to build a product using similar ideas, features, functions, or graphical user interfaces of the Platform, or to copy any ideas, features, functions, or graphical user interfaces of the Platform.  If it suspects any breach of the requirements of this Section 7.1 (Acceptable Use), including without limitation by End Users, Provider may suspend Customer’s access to the System without advanced notice, in addition to such other remedies as Provider may have. 

7.2 Connectivity. Customer is solely responsible for all telecommunication or internet connections and associated fees required to access and use the Platform, as well as all hardware and software of the Customer. Provider is not responsible for: (a) Customer’s access to the internet; (b) interception or interruptions of communications through the internet; or (c) changes or losses of data through the internet.

7.3 Export/Import Control Compliance. Customer shall not: (a) permit any third party to access or use the Platform in violation of any U.S. law or regulation; or (b) export any software provided by Provider or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the preceding, Customer shall not permit any third party to access or use the Platform in, or export such software to, a country subject to a United States embargo (as of the Effective Date, the Crimea Region of Ukraine, Cuba, Iran, North Korea, and Syria).

7.4 Administrators. At all times during the Term of this Agreement, Customer will ensure that there is at least one Account Administrator designated for Customer. Customer agrees and understands that each Account Administrator will be provided with certain administrative privileges concerning your account which other users will not have, including without limitation, configuring administration settings, assigning access and use authorization for End Users, requesting different or additional services, and accepting notices, disclosures, and terms of service.  The Account Administrator shall be solely responsible for authorizing, issuing, and deauthorizing End Users, administering security profiles of End Users, and inputting data regarding the End Users.   Customer is responsible for all acts, and failures to act, of your Account Administrators and End Users, and is responsible for their compliance with this Agreement.  You will promptly terminate the login credentials of any Account Administrator or End User who: (a) ceases to be engaged by you as an employee, agent, or independent contractor; (b) you no longer wishes to have access to the Platform for any reason; or (c) you know or reasonably believe is causing you to breach any provision of this Agreement or is in any way misusing the Platform.  Customer agrees that Provider shall have no responsibility or liability for any damage or loss caused by your failure to deauthorize an Account Administrator or End User, or for any act, or failure to act, by an Account Administrator or End User.

8. Representations; Warranty; Limitations of Liability.

8.1 Mutual Representations and Warranties. Each party represents and warrants that it has all requisite power, authority, and approvals to enter, execute and deliver this Agreement, and that the Agreement constitutes a valid and binding contract.

8.2 Limited Warranty. PROVIDER WARRANTS THAT DURING THE TERM OF THIS AGREEMENT, THE PLATFORM SHALL MATERIALLY CONFORM TO THE THEN CURRENT DOCUMENTATION AND PROVIDER WILL NOT MATERIALLY DECREASE THE OVERALL FUNCTIONALITY OF THE PLATFORM. PROVIDER DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE PLATFORM WILL MEET CUSTOMER’S REQUIREMENTS, THAT ALL ERRORS IN THE PLATFORM WILL BE CORRECTED, OR THAT THE OVERALL SYSTEM THAT MAKES THE PLATFORM AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. 

8.3 Warranty Disclaimers. EXCEPT FOR THE LIMITED WARRANTY PROVIDED IN SECTION 8.2 (LIMITED WARRANTY), CUSTOMER ACCEPTS THE PLATFORM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. FOR ANY BREACH OF THE ABOVE WARRANTY, PROVIDER WILL, AT NO ADDITIONAL COST TO CUSTOMER, PROVIDE REMEDIAL SERVICES NECESSARY TO ENABLE THE PLATFORM TO CONFORM TO THE WARRANTY. CUSTOMER WILL PROVIDE THE PROVIDER WITH A REASONABLE OPPORTUNITY TO REMEDY ANY BREACH AND REASONABLE ASSISTANCE IN REMEDYING ANY DEFECTS. THE REMEDIES SET OUT IN THIS SECTION ARE CUSTOMER’S SOLE REMEDIES FOR BREACH OF THIS WARRANTY. THIS WARRANTY WILL ONLY APPLY IF THE PLATFORM HAS BEEN UTILIZED BY CUSTOMER IN ACCORDANCE WITH AN ORDER, TERMS OF USE, AND THIS AGREEMENT. CUSTOMER UNDERSTANDS THAT USE OF THE PLATFORM DOES NOT CONSTITUTE ANY GUARANTEE OR ASSURANCE THAT THE SECURITY OF CUSTOMER’S CLIENTS’ SYSTEMS, NETWORKS, AND ASSETS CANNOT BE BREACHED OR ARE NOT AT RISK. 

8.4 Limitations of Liability.  ALL CLAIMS AND DAMAGES UNDER THIS AGREEMENT, WHETHER ARISING BY STATUTE, CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE SUBSCRIPTION FEES PAID OR PAYABLE BY CUSTOMER DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE LIMIT OF LIABILITY IN THE PRECEDING SENTENCE IS CUMULATIVE AND NOT PER INCIDENT. EACH PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY AND THE PRECEDING LIMITATIONS DO NOT APPLY TO: (A) EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 (INDEMNIFICATION); (B) EACH PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6 (CONFIDENTIALITY); (C) CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES; PAYMENT TERMS); AND (D) DAMAGES ARISING FROM FRAUD OR A PARTY’S INTENTIONAL MISCONDUCT OR TO THE EXTENT SUCH LIMITATIONS ARE PROHIBITED BY LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES OR CERTAIN DAMAGES, IN WHICH CASE THE LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

8.5 Excluded Damages. NEITHER PARTY WILL BE LIABLE TO THE OTHER, OR ANY THIRD PARTY, FOR LOSS OF PROFITS, LOSS OF BUSINESS, OR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES IN CONNECTION WITH THE PERFORMANCE OF THE PLATFORM, OR THE PERFORMANCE OF ANY OTHER OBLIGATIONS UNDER THIS AGREEMENT, EVEN IF IT IS AWARE OF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES.  

9. Indemnification.

9.1 Provider Indemnity Obligations. Provider will defend, indemnify, and hold harmless Customer and its directors, officers, employees, agents and representatives, from all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) arising from a claim by a third party that Customer’s authorized use of the Platform infringes that third party’s United States patent, copyright, trade secret, or other intellectual property rights.  If a claim of infringement under this Section 9.1 (Provider Indemnity Obligations) occurs, or if Provider determines a claim is likely to occur, Provider will have the right, in its sole discretion, to either: (a) procure for Customer the right or license to continue to use the Platform free of the infringement claim; or (b) modify the Platform to make it non-infringing, without loss of material functionality.  If neither of these remedies is reasonably available Provider may, in its sole discretion, immediately terminate this Agreement and, upon return of the infringing Platform from Customer, refund the fees paid for such Platform, prorated over twelve months from initial delivery of the Platform to Customer.  Notwithstanding the preceding, Provider will have no obligation concerning any claim of infringement that is based upon or arises out of: (c) Customer’s breach of this Agreement; (d) the use or combination of the Platform with any hardware, software, product, data, or other materials not provided by Provider in the case where, but for such a combination, the infringement would not have occurred; (e) modification or alteration of the Platform by anyone other than Provider; or (f) use of the Platform in excess of the rights granted in this Agreement. The provisions of this Section 9.1 (Provider Indemnity Obligations) state the sole and exclusive obligations and liability of Provider for any claim of intellectual property infringement arising out of or relating to the Platform or this Agreement, and are in lieu of any implied warranties of non-infringement, all of which are expressly disclaimed.

9.2 Customer Indemnity Obligations. Customer agrees to defend, indemnify and hold harmless Provider and its directors, officers, employees, agents and representatives, from all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) arising from a claim by a third party due to, arising out of or relating to Customer’s use of the Platform in breach of this Agreement. 

9.3 Indemnity Procedure. The indemnified party shall: (a) promptly notify the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby; and (b) allow the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying party shall not settle any claim without the indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed). The indemnified party shall also provide the indemnifying party with reasonable cooperation and assistance in defending such claim (at the indemnifying party’s cost).

10. Miscellaneous Terms.

10.1 Non-Solicitation of Employees, Clients, and Consultants. Both parties acknowledge and agree that the other parties’ ability to operate their business depends upon the ability to attract and retain skilled employees and consultants, and that each party has, and will continue to, invest substantial resources in training such employees and consultants. Therefore, during the Term of this Agreement, and for one year thereafter, neither party shall, without the prior written consent of the other party, solicit for employment or employ any employee or consultant of the other party who was directly involved in the performance of this Agreement. For purposes of this section, "solicit" does not include contact resulting from indirect means such as public advertisement, placement firm searches or similar means not directed specifically at the employee to which the employee responds on their own initiative.

10.2 Equitable Relief. The parties acknowledge and agree that it will be difficult to measure in money damages the injury resulting from the failure to comply with the obligations or restrictions imposed by Sections 2.2 (Restrictions on Use), 5.1 (Ownership of Platform; Data Management), 6.1 (Restrictions on Use of Confidential Information), and 10.1 (Non-Solicitation of Employees and Consultants) of this Agreement, and that in the event of such failure, the non-breaching party will suffer irreparable injury and will not have an adequate remedy at law or for monetary damages. Therefore, in the event of a breach or threatened breach of these sections, the breaching party agrees and consents to the issuance of an injunction or the enforcement of other equitable remedies against the breaching party, its successors or assigns, without the obligation of posting any bond or security, to compel specific performance of the terms of this Agreement.  The breaching party waives any defenses that damages are an adequate remedy at law. Notwithstanding the preceding, the non-breaching party may also pursue legal remedies deemed to be appropriate in the event of a breach of this Agreement, including seeking monetary damages.

10.3 Choice of Law and Forum. This Agreement shall be governed by the laws of the State of Florida without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties each consent to the personal and exclusive jurisdiction of the federal and state courts of Jacksonville, Duval County, Florida for all cases and controversies arising out of this Agreement or the use of the Platform.  The parties agree that any order or judgment entered by these courts may be domesticated and enforced in any necessary and appropriate jurisdiction.

10.4 Independent Contractors. The parties have the status of independent contractors, and nothing in this Agreement nor the parties' conduct will be deemed to place the parties in any other relationship. 

10.5 Compliance with Laws. Each party shall comply with all applicable local, state, national and foreign laws in connection with its use of the Platform herein, including those laws related to data privacy and the transmission of technical or personal data. 

10.6 Waiver of Jury Trials and Class Actions. EACH PARTY HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY FOR DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION COUNTERCLAIMS REGARDING SUCH DISPUTES, CLAIMS RELATED TO THE PARTIES’ NEGOTIATIONS AND INDUCEMENTS TO ENTER INTO THIS AGREEMENT, AND OTHER CHALLENGES TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT. THE WAIVER IN THE PRECEDING SENTENCE APPLIES REGARDLESS OF THE TYPE OF DISPUTE, WHETHER PROCEEDING UNDER CLAIMS OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY. NEITHER PARTY SHALL BRING OR PARTICIPATE IN ANY CLASS ACTION OR OTHER REPRESENTATIVE PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER PROCEEDING UNDER CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY (COLLECTIVELY, “THIS AGREEMENT’S CLAIMS”). THIS AGREEMENTS’ CLAIMS INCLUDE, WITHOUT LIMITATION, COUNTERCLAIMS, CLAIMS RELATED TO THE PARTIES’ NEGOTIATIONS AND INDUCEMENTS TO ENTER INTO THIS AGREEMENT, AND OTHER CHALLENGES TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT. THE PROCEEDINGS EXCLUDED ABOVE IN THIS SECTION 10.6 (WAIVER OF JURY TRIALS AND CLASS ACTIONS) INCLUDE, WITHOUT LIMITATION, CLASS-WIDE ARBITRATION AND PRIVATE ATTORNEY-GENERAL ACTIONS.

10.7 Marketing. Customer agrees to be identified as a customer of Provider and that Provider may refer to Customer by name, trade name and trademark, if applicable, and may briefly describe Customer’s business in Provider’s marketing materials, web site(s), in public, or in legal documents. Customer hereby grants Provider a license to use Customer’s name and any of Customer’s trade names and trademarks solely pursuant to this marketing section.

10.8 Attorneys' Fees. In the event of any litigation or other legal proceedings between the parties, the prevailing party shall be entitled to reasonable attorneys' fees and all costs of proceedings incurred in enforcing this Agreement.

10.9 Waiver. No failure or delay by either party in exercising any rights under this Agreement will constitute a waiver of that right. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative deemed to have granted the waiver.

10.10 Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable. If a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to achieve its original effect to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect. 

10.11 Force Majeure. Neither party to this Agreement shall be liable for delays or failures in performance under this Agreement (other than the payment obligations or breach of confidentiality requirements) resulting from acts or events beyond the reasonable control of such party, including acts of war, terrorism, acts of God, earthquake, flood, embargo, riot, sabotage or dispute, pandemic, shelter-in-place or similar orders, governmental action or failure of the Internet, power failure, energy interruption or shortages, other utility interruption, telecommunications interruption, or other cause beyond the performing party’s reasonable control, provided that the delayed party: (a) gives the other party prompt notice of such cause; and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance.

10.12 Entire Agreement; Construction; Modifications. This Agreement constitutes the entire understanding between the parties related to this Agreement which understanding supersedes and merges all prior understandings and all other proposals, letters, agreements, oral or written. This Agreement shall not be construed against either party as the drafter hereof, it being agreed that this Agreement has been negotiated by both parties and their selected legal counsel. The parties further agree that there are no other inducements, warranties, representations, or agreements regarding the matters herein. No agent, employee, or representative of Provider has any authority to bind Provider to any affirmation, representation or warranty unless specifically included within this Agreement. This Agreement may not be modified except in a written agreement executed by authorized representatives of both parties.

10.13 Assignment. Customer may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of Provider. Any attempted assignment or delegation without such consent will be void and Provider may immediately terminate this Agreement for cause.  Provider may assign its rights or delegate its duties under this Agreement either in whole or part to its Affiliates, successors and assigns. 

10.14 Survivability. All provisions of this Agreement relating to confidentiality, non-disclosure, intellectual property, disclaimers, limitation of liability, indemnification, and payment, and any other provisions which must survive to give effect to their meaning, shall survive the termination of this Agreement.

10.15 No Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement. 

10.16 Notices. Any notice provided pursuant to this Agreement shall be in writing and sent by personal delivery or nationally recognized overnight courier, which shall be deemed received as of the date of delivery. All notices shall be addressed to the parties at the party’s respective address set forth in the opening paragraph of this Agreement, or at such other addresses as either party may in the future specify in writing to the other.

10.17 Headings. The headings contained in this Agreement are for convenience only and shall not affect the meaning or interpretation of this Agreement. 

10.18 Counterparts; Execution. This Agreement may be executed in two or more original or facsimile counterparts, each of which will be deemed an original, but all of which together shall constitute the same instrument. The parties agree that this Agreement may be executed electronically and agree to the use of electronic records and signatures.